Doering v. St. Louis & O'Fallon Ry. Co.

Decision Date03 October 1933
Docket NumberNo. 22340.,22340.
Citation63 S.W.2d 450
CourtMissouri Court of Appeals
PartiesDOERING v. ST. LOUIS & O'FALLON RY. CO. et al.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be published in State Reports."

Action by John Doering against the St. Louis & O'Fallon Railway Company of St. Louis and others. Verdict and judgment for plaintiff against the first named defendant. From an order granting defendant's motion for new trial, plaintiff appeals.

Affirmed.

Gerritzen & Gerritzen and Allen, Moser & Marsalek, all of St. Louis, for appellant.

Nagel, Kirby, Orrick & Shepley and Dwight D. Ingamells, all of St. Louis, Mo., for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff on December 31, 1928, when he fell through the floor of a coal car which he was engaged in unloading upon the premises of his employer, Anheuser-Busch, Inc.

Plaintiff testified that in the evening prior to the day of his injury he saw three coal cars being switched into his employer's plant by a locomotive of the Manufacturers' Railway Company. Each of such cars had painted on its side the name "St. Louis & O'Fallon Railway Company," thus raising the presumption that the cars were owned by the company. Who owned the tracks inside the plant upon which the cars were set down to be unloaded does not appear.

On the following morning when plaintiff reported for work he again noticed three coal cars standing on the track, similarly designated as those he had seen switched in the evening before. Whether they were the same cars he could not say, though that deficiency in his proof is not material upon the issues involved on this appeal. At least, he was assigned by his employer to work in one of the cars which bore upon its side the name "St. Louis & O'Fallon Railway Company"; and while so engaged, the flooring of the car gave way as plaintiff stepped upon it, causing him to sustain the injuries for which he has sued.

He testified that immediately after the accident he examined the floor of the car, which was of metal, and found that it was weather-beaten and eaten up from the weather, with numerous small holes through it in much the same fashion as a sieve.

Following the injury, which was concededly by accident arising out of and in the course of plaintiff's employment, his employer, Anheuser-Busch, Inc., began the payment of compensation as computed according to the terms of the act. It is because of the latter's right of subrogation that it was named as one of the defendants to the action; the petition alleging that upon plaintiff's request it had refused to join him as a party plaintiff.

In his petition, which was drawn upon the theory that the car in which he was injured was owned and operated by the St. Louis &amp O'Fallon Railway Company, though switched into the employer's premises by the Manufacturers' Railway Company, plaintiff charged negligence, the gist of which was the furnishing of a car which was defective and unsafe for the purpose for which it was intended, and the failure to inspect the same or to warn him of its unsafe condition.

So far as the charge of negligence was concerned, the separate answer of each defendant was a general denial.

At the close of the evidence the court gave an instruction directing a verdict in favor of defendant Manufacturers' Railway Company, but refused like peremptory instructions requested by the other two defendants. By its verdict the jury found for plaintiff and against defendant St. Louis & O'Fallon Railway Company, for the sum of $7,500, less $969.07, which sum was awarded to defendant Anheuser-Busch, Inc., to reimburse it for the compensation theretofore paid by it to plaintiff.

All the parties accepted such verdict and the judgment rendered thereon save the St. Louis & O'Fallon Railway Company, which in due time filed its motion for a new trial. Thereafter the court sustained said motion upon the ground that the peremptory instruction requested by such defendant at the close of the evidence should have also been given; and, from the order so entered, plaintiff has duly perfected his appeal.

Necessarily the burden of plaintiff's complaint is that the court erred in sustaining the motion for a new trial upon the ground that no case had been made for the jury as against defendant St. Louis & O'Fallon Railway Company.

The case is one involving the question of the liability of the initial, intermediate, and ultimate carriers to third persons, other than their own employees, for injuries resulting from defective equipment and appliances, and fortunately the general rules of law to govern such a situation have become well settled.

When an initial carrier furnishes a car to a shipper to be loaded with freight and to be then delivered to a consignee whose servants are to unload the car, it is charged with the duty to exercise ordinary care to see that the car is in such state of repair that such servants, while exercising ordinary care themselves, can enter upon it with reasonable safety for the purpose of unloading it.

In like measure it is the duty of the delivering carrier, before delivering the car to the consignee, to exercise due care to examine it and to ascertain whether it is in such state of repair that the servants of the consignee, while exercising reasonable care themselves, can enter upon it with reasonable safety for the purpose of unloading it, and if it is not in such condition, then it is the duty of the delivering carrier to make the necessary repairs, or to notify the consignee of the unsafe condition of the car so that the consignee can warn its servants of the danger before they enter upon it.

Quite obviously, however, in the case of an intermediate or connecting carrier, the measure of duty is not the same. In the first place,...

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11 cases
  • Markley v. Kansas City Southern Ry. Co.
    • United States
    • Missouri Supreme Court
    • 11 Febrero 1936
    ... ... v. So. Ry ... News Co., 151 Mo. 373, 52 S.W. 205; Heman Const. Co ... v. St. Louis, 256 Mo. 332, 165 S.W. 1032; Berkson v ... Ry. Co., 144 Mo. 211, 45 S.W. 1119; Flenner v ... 376; ... Allen v. Larabee Flour Mills Corp., 328 Mo. 226, 40 ... S.W.2d 597; Doering v. St. Louis & O'Fallon Railroad ... Co., 63 S.W.2d 450; 9 L. R. A. (N. S.) 857, note; 9 Ann ... ...
  • Willis v. Atchison, T. & S. F. Ry. Co.
    • United States
    • Missouri Supreme Court
    • 8 Febrero 1944
    ... ... Co., 83 S.W.2d 729; ... K.C., M. & O. Ry. Co. of Texas v. Pysher, 195 S.W ... 981; Doering v. St. Louis & O'Fallon, 63 S.W.2d ... 450; Davis v. Standard Rice Co., 293 S.W. 593; ... ...
  • State ex rel. Fielder v. Kirkwood
    • United States
    • Missouri Supreme Court
    • 2 Abril 1940
    ... ... Robert J. Kirkwood and Charles B. Williams, Judges of the Circuit Court of the City of St. Louis, and Their Successors as Presiding Judge of said Court No. 36779Supreme Court of MissouriApril 2, ... tort-feasors in one action, wherever jurisdiction may be ... obtained on all. Doering v. St. Louis & O'Fallon Ry ... Co., 63 S.W.2d 450; Sykes v. St. L.-S. F. Ry ... Co., 178 Mo ... ...
  • Settle v. Baldwin
    • United States
    • Missouri Supreme Court
    • 8 Julio 1946
    ... ... 534; Hawkins ... v. Mo. Pac. Ry. Co., 182 Mo.App. 323, 170 S.W. 459; ... Sykes v. St. Louis & S.F.R. Co., 178 Mo. 693, 77 ... S.W. 723; Tyndall v. New York Cent. & H.R. Co., 141 ... S. 879; Doering v. St. Louis & O'Fallon Ry ... Co., 63 S.W.2d 450; Burns v. K.C., Ft. Smith & Memphis Ry. Co., ... ...
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